The Week in Torts – Cases from the Week of March 24, 2017
FLORIDA LAW WEEKLY
VOLUME 42, NUMBER 12
CASES FROM THE WEEK OF MARCH 24, 2017
COURT REVERSES DISMISSAL FOR FRAUD ON THE COURT.
Duarte v. Snap-On, Inc., 42 Fla. L. Weekly D608 (Fla. 2nd DCA March 15, 2017):
A man sued these defendants after a serious accident. He was the driver, while his girlfriend, her daughter, his son and his grandson were passengers, they were rear-ended by a truck. His girlfriend was rendered paraplegic in the accident and the other three passengers were also seriously injured.
The plaintiff driver sued for his own injuries. The only dispute in the case was over the extent of the injuries that the accident caused. However, the controversy was muddied because after he filed suit, the plaintiff driver was involved in another car accident two months later. The parties disputed over how significantly injured he was in the first accident.
During discovery, the plaintiff failed to disclose certain providers and treatment dates, though filed amended answers. A month before trial, the defendant moved to dismiss the case with prejudice based upon fraud on the court. The defendant essentially argued that the plaintiff had testified falsely about the severity of the second accident during his deposition, and then failed to disclose it and the subsequent medical visits related to the same injuries from the first accident.
The trial court heard the motion without taking evidence. The plaintiff proffered that he did not intend to mislead anyone and that he does not read or speak English as evidenced by his use of an interpreter during the deposition. Still, relying solely on the attachments to the motion, the trial court concluded that plaintiff repeatedly told untruths about the second accident and that his credibility was so damaged, that the testimony could not be presented to a jury.
To obtain dismissal for fraud on the court a movant must prove the case by clear and convincing evidence. Substantively, the party must show that the opponent “sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” The standard requires a trial court to balance two important public policies of the state; the preferred policy of adjudicating disputed civil cases on the merits and the policy of maintaining the integrity of the state’s judicial system.
As characterized by the opinion, the plaintiff had played the two accidents off each other to maximize his recovery in each, and had tried to make the second accident sound serious for the purposes of beefing up his uninsured motorist claim for that accident, while also emphasizing the damages from the first accident.
In reversing the dismissal, the court noted that this was not a case where the plaintiff suffered no injury. The first accident was very severe and the defendant did not deny that plaintiff suffered injuries from it. The dispute was over the extent of those injuries, and the extent to which the second accident caused or contributed to them. On that score, the plaintiff did not falsely deny that he was in a second accident and on the contrary identified the event as having happened, but described it as being slight, not rising to the level of an accident.
Also, the trial court erred in finding that the plaintiff affirmatively or intentionally misrepresented his medical conditions in his discovery responses, especially because the plaintiff had amended his answers, and there was no evidentiary hearing.
The court looked at other decisions where it affirmed dismissals for fraud based on false or misleadingly incomplete discovery responses. In those cases, the material difference as the Second District noted, was that the trial court had dismissed the case after an evidentiary hearing enabled it to find as facts that the plaintiff had done something false or misleading, or where the plaintiff’s nonculpable explanations for his conduct were unconvincing and it was sufficiently severe to warrant dismissal.
In this case, the trial court failed to conduct an evidentiary hearing and lacked a sufficient evidentiary basis for determining that fraud had occurred. Because the limited documentary record before the trial court was not sufficient to justify a decision that dismissal rather than impeachment at trial or discovery sanctions was the appropriate remedy for the conduct, the trial court abused its discretion in dismissing the action with prejudice.
TRIAL COURT DID NOT ERR IN DENYING PLAINTIFF’S MOTION TO AMEND TO ADD AN ADDITIONAL DEFENDANT JUST PRIOR TO TRIAL WHERE THAT PROPOSED DEFENDANT WAS MERELY A THIRD-PARTY DEFENDANT UNTIL THE THIRD-PARTY PLAINTIFF VOLUNTARILY DISMISSED ITS COMPLAINT–THE DISMISSAL DIVESTED THE COURT OF IN PERSONAM JURISDICTION BECAUSE AS THE STATUTE OF LIMITATIONS HAD RUN, AND THE AMENDMENT WOULD HAVE BEEN FUTILE.
McCray v. Bellsouth Telecommunications, 42 Fla. L. Weekly D617 (Fla. 4th DCA March 15, 2017):
In this slip and fall case, the plaintiff filed a negligence action against defendants Bellsouth, and Mastec, Inc. Mastec filed a third-party complaint against another subcontractor on the project. The plaintiff did not amend his complaint to allege a cause of action against the third-party defendant.
Several years later, on the day before the trial was to begin, the third-party plaintiff voluntarily dismissed its case against the third-party defendant with prejudice. The plaintiff then had moved to amend his complaint to add the third-party defendant as a party defendant. The trial court refused the amendment.
Because of the statute of limitations which had run, the amendment would have been futile. It would not have related back because the amendment sought to bring in an entirely new party defendant. Thus, the trial court did not abuse its discretion in refusing to allow the amendment.
SUMMARY JUDGMENT BASED ON WORKERS’ COMPENSATION IMMUNITY UPHELD.
Morera v. Waste Management, Inc. of Florida, 42 Fla. L. Weekly D625 (Fla. 4th DCA March 15, 2017):
The plaintiff was an employee of Waste Collections, a help supply services company as defined in the Standard Industry Code Industry Number 7363 of the U.S. Department of Labor Standard Classifications. The court found Waste Management had immunity because Waste Management was acting as the plaintiff’s “special employer.” The Fourth District agreed with the trial judge.
As to the staffing services defendant, plaintiff had sued it for intentional conduct and negligent hiring based upon the conduct of a worker who was operating the conveyer belt at the time plaintiff was injured and whom plaintiff claim was employed by GL. However, the evidence showed that GL did not employ the driver. Thus he was the co-employee of the appellant, thereby rendering the other employer defendant immune also.
CERTIORARI REVIEW IS NOT AVAILABLE TO REVIEW THE STRIKING OF AN EXPERT PURSUANT TO DAUBERT.
Rhoades v. Rodriguez, 42 Fla. L. Weekly D644 (Fla. 5th DCA March 17, 2017):
The defendant argued that as a result of Florida’s adoption of Daubert regarding the admissibility of scientific evidence, Florida’s trial courts are now armed with a broader ability to strike an expert witness, necessitating a modification in the ability for certiorari review and the implementation of a new appellate standard for evaluating the propriety of trial court orders striking expert witnesses. The defendant urged the Fifth District to recede from its nearly unanimous en banc decision in Bill Kasper Construction v. Morrison, where the court held that certiorari review of a trial court’s pretrial order striking a defendant’s expert witnesses was unwarranted, due to the availability of post-judgment appellate relief.
The Fifth District declined the defendant’s invitation to recede from its earlier decision. It noted that the supreme court’s recent opinion could result in the trial judge’s decision to vacate the interlocutory order that was before the court anyway (citing Judge Torpy’s concurrence which noted that the possibility of a change in a trial court’s ruling could render moot the issues before an appellate court, and thus that is an additional factor for denying certiorari review).